August 31, 2015

New Delhi: The Supreme Court of India last week set aside a Madras High Court order and directed the Tamil Nadu government to revise the seniority list of Assistant Divisional Engineers applying the ‘catch up rule’ within four months.

The Tamil Nadu Government also has been asked by the Supreme Court that any promotion granted to the Assistant Divisional Engineers promoted from the rank of Junior Engineers following “rule of reservation with consequential seniority” should be reversed and Further promotion of Assistant Divisional Engineers shall be as per the revised seniority list.

The landmak judgement by a two-judge bench of the apex court comprising Justice T.S. Thakur and Justice R. Banumathi on 27 August 2015 says: “In the absence of any provision for consequential seniority in the rules, the ‘catch up rule’ will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates, if later reach the promotional level, general candidates will regain their seniority.

Further, the order says: “The Division Bench (of the Madras High Court) appears to have proceeded on an erroneous footing that Article 16 (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained.

Supreme Court order draws attention to the respondents’ contention that in about eight departments of the State, rule of reservation is followed and one among them is Tamil Nadu Highways Engineering Service and in terms of Rule 12 practice of following rule of reservation in promotion is in existence for more than sixty years and therefore the Division Bench (of the High Court) rightly extended the protection under Article 16(4A) to accelerated promotees. We are not impressed with the above submission, the Supreme court has said adding in terms of Rule 12, reservation is followed only for promotion of AEs/JEs as Assistant Divisional Engineers and Rule 12 does not protect the consequential seniority to ADEs who were promoted following the rule. The appellants belonging to the general category are not questioning the accelerated promotion granted to the Junior Engineers/Assistant Engineers by following rule of reservation but are “only seeking fair application of the ‘catch up rule’ in the fixation of seniority in the category of ADEs.”

The Supreme court has emphasised that the true legislative intent under Article 16 (4A) of the Constitution is to enable the State to make provision or frame rules giving consequential seniority for the accelerated promotion gained based on the rule of reservation. Rule 12 evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. In the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category accelerated promotees, there is no question of automatic application of Article 16 (4A) of the Constitution.

The respondents in this case placed heavy reliance upon Rule 12 of the Special Rules Tamil Nadu Engineering Service and contended that their consequential seniority is protected in terms of Rule 12 and under Article 16 (4A) of the Constitution of India. Rule 12 reads as under:-
“Rule 12: Reservation of appointments: The rule of reservation of appointments (General Rule 22) shall apply to the appointment of Assistant Divisional Engineers by direct recruitment and recruitment by transfer separately and the appointment of Assistant Engineers by direct recruitment.”
The apex court has especially pointed out that Article 16(4A) of the Constitution is only an enabling provision which specifically provides that the concerned State may make any provision for providing reservation of appointments or posts in favour of any backward class citizens which is not adequately represented in the services under the State. Articles 16(4) and 16(4A) have to be read with Article 335 of the Constitution which deal with norms of Scheduled Castes and Scheduled Tribes to services and posts and lay down that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

The order underscores that in the absence of any policy decision taken by the State of Tamil Nadu, Eighty-fifth Amendment per se will not protect the consequential seniority granted to the respondents who were promoted to the post of Assistant Divisional Engineers following the rule of reservation.

Common issues involved in a bunch of appeals addressed by he Supreme Court in this case are :-

(i) In the absence of policy decision taken by the State/rules framed pursuant to the enabling provision of Article 16 (4A) of the Constitution of India whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post;

(ii) In the absence of policy decision taken by the State with regard to Tamil Nadu Highways Engineering Service Rules, whether Division Bench was right in holding that Article 16(4A) of the Constitution of India by itself would give consequential seniority in addition to accelerated promotion to the roster-point promotees.